The Clapham Omnibus

Contents

CONTENTS PUBLISHER Ian Fletcher Benham Publishing Limited 43tc House 16 Crosby Rd Crosby Liverpool L22 0NY Tel: 0151 236 4141 Fax: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com

ADVERTISING AND FEATURES EDITOR Anna Woodhams

PRODUCTION MANAGER Fern Badman

Introduction 4 4 5

LIST OF OFFICERS APPLICATION FOR MEMBERSHIP/RENEWAL PRESIDENT’S REVIEW News

6 7 8 10 11 12

COUNCIL MEMBER’S REPORT PROGRAMME OF CPD EVENTS 2014 SOUTH LONDON LAW SOCIETY AGM ACCESS TO JUSTICE AT LAMBETH COUNTY COURT LSB RECOMMENDS LORD CHANCELLOR TO GIVE CILEX LAWYERS FURTHER INDEPENDENT PRACTICE RIGHTS ANNUAL DINNER 2013 Property

ACCOUNTS DIRECTOR Joanne Casey

MEDIA No. 1350

14 16

SOCIAL HOUSING FRAUD AND THE PREVENTION OF SOCIAL HOUSING FRAUD ACT 2013 RECENT FLOOD EVENTS CALL US ALL INTO ACTION Mediation

PUBLISHED March 2014 © Benham Publishing Ltd

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THEA LIMITED SOLICITORS AND MEDIATORS Legal Aid

LEGAL NOTICE © Benham Publishing.

None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press.

Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

20 22 24

Practice Management 26 27 28

DISCLAIMER The South London Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation.

COURT GIVES THUMBS UP FOR FAMILY ARBITRATION Employment Law

31 32

Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

COVER INFORMATION The cover image was supplied by © Tom Elkins www.threepractices.com.

THE CENTRE OF EUROPEAN LAW, KING’S COLLEGE LONDON 40TH ANNIVERSARY 2014 ICONIC DOGS TRUST SLOGAN MARKS LANDMARK ANNIVERSARY “IT’S THE ECONOMY, STUPID!” OR IS IT? Family Law

30 All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.

CIVIL LEGAL AID – WHERE ARE WE NOW? CRIMINAL LEGAL AID UPDATE UNJUST - A PHOTOGRAPHIC SERIES

IMPORTANT CHANGES TO TUPE REGULATIONS HART BROWN EXPLAINS EMPLOYMENT RIGHTS IN RELATION TO FLOODING Junior Lawyers Division

33 34

GETTING TO GRIPS WITH CYCLING RELATED PERSONAL INJURY CLAIMS JLD EVENTS UPDATE The Clapham Omnibus 3

Introduction

OFFICERS President

Vice-President

Council Member

Stephen Whitaker 020 7940 4000 Tel: e-mail: stephen.whitaker@anthonygold.co.uk

Robert Hush 020 7815 6725 Tel: e-mail: hushr@lsbu.ac.uk

David Taylor Tel: 020 7228 0017 e-mail: dxt@hanne.co.uk

Gareth Ledsham 020 8394 6413 Tel: e-mail: gareth.ledsham@Russell-Cooke.co.uk

Lawumi Biriyok 020 7237 4499 Tel: e-mail: birisho@aol.com

Richard Busby Tel: 020 7091 2755 e-mail: richard.busby@fishermeredith.co.uk

Treasurer

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Hon. Secretary

Magazine Editor

Web Address: www.southlondonlawsociety.co.uk

Introduction

PRESIDENT’S REVIEW It goes without saying that I was delighted to be asked to be your President for a third term. As can be seen from the Report of the AGM in this edition of the Journal, all officers remained the same and our Committee is intact going forward.

I have said it before and I say it again in this column that where we differ from the majority of local Law Societies is that our operation is run entirely by volunteers. We do not have any paid administrator and so we do it all ourselves and I continue to be eternally grateful to my Committee for all the hard work they put in over the course of any year.

I must also say a particular thanks to Committee Member Richard Busby of Fisher Meredith who has taken over the editorship of this Journal. It goes without saying that this is a cost saving exercise but, that notwithstanding, we could not achieve that without someone stepping up to the plate and Richard has done just that. This is his first edition as Editor and I hope you like it.

On that note, I must of course thank his predecessor Zara Ronchi who has been Magazine Editor for pretty much all the time I have been involved with South London Law Society. Zara has done a terrific job over a long period and we are very grateful to her. There is no doubt that the quality of the magazine has improved immeasurably since Zara took it on board all those years ago and the fact that we continue to produce three editions of our magazine each year is something that South London Law Society are incredibly proud of.

So I am back as your President in what will again prove to be a challenging year. The fight against Criminal Legal Aid cuts is, of course, at the very top of the agenda as it has been now for some time and there is a particularly interesting piece on that subject written by Criminal lawyer Graeme Rothwell in this edition of the Journal. I have got to know Graeme recently and I am grateful to him for his passionate contribution to this edition of the Omnibus written from the perspective of someone actually directly affected. His article is written from the heart and from the High Street!

Something that Graeme did not mention in his piece was the Oxford Economics Report which was jointly commissioned by The Law Society, The Criminal Law Solicitors Association and The Legal Aid Practitioners Group amongst others. The Report indicated that falling trends in crime may actually negate the need for many of the cuts currently being pursued by the Ministry of Justice. The conclusion of the Report was that two thirds of the claimed requirement for £120M of annual savings from the budget could be saved if crime rates continue at their current downward trajectory. Crime rates have been in steady

decline for over a decade and assuming this trend continues, research suggests Legal Aid costs could be £84M lower by 2018/19 without the need for the damaging cuts currently being proposed.

We will of course continue to keep you updated in this matter as the year progresses and, of course, all contributions on this and all other subjects are always welcome.

There is stark contrast at the moment between the plight of Criminal Legal Aid practitioners and Residential Property Conveyancers it would seem because the latter have not had it so good for a long time and all solicitors across London in particular are reporting a surge in transactional volumes. Only this week have we seen banner headlines – and this was in a serious paper and not the Daily Mail! – that the current “property boom” might be for the next ten years. As a property solicitor that would see me into my retirement so I would be grateful for that.

We will look to bring you we hope this year a varied programme of social events. We are looking at another quiz in the Spring following the success of last year’s sports themed quiz. We will hope to have some kind of sports event in the Summer but something we can make available to all. Then, in the Autumn, almost certainly in October, there will be our annual dinner which we think this year will revert back to the usual format. Obviously, the challenge will be to find a venue that will fit with the quality that we have offered in the past.

My best wishes to you all for 2014.

COPY DEADLINES Summer 2014 Issue Autumn 2014 Issue Spring 2015 Issue

30th May 2014 30th September 2014 30th January 2015

Members wishing to submit editorial please contact us before copy deadline.

Anyone else wishing to advertise or submit editorial for publication in the Clapham Omnibus please contact Anna Woodhams, before copy deadline.

Email: Tel:

anna@benhampublishing.com 0151 236 4141

The Clapham Omnibus 5

COUNCIL MEMBER’S REPORT News

SPECIAL GENERAL MEETING

Since the last edition of the magazine there has been, of course, the Special General Meeting on 17th December. There was a passionate debate, the outcome being that the motion of no-confidence in the President & Chief Executive was passed by very small margin.

There was a special Council meeting called for the afternoon which we debated the implications of the motion. I can tell you that in no way was argument dismissed. We took very seriously the fact that a significant percentage of the membership involved in criminal defence work had expressed dissatisfaction with the way the Society had conducted the negotiations with government.

The position of the Officers of the Society and of the majority of Counsel is that decisions were taken to preserve the livelihoods of as many of our members as possible. It was for this reason that we entered into negotiations with the government and did not take position of non-cooperation. I understand the argument for non-cooperation which is the rout that the Bar is presently taking.

However, there is a significant difference between the Bar and the solicitors’ profession. Individual barristers can dip in and out of criminal legal aid work if they so wish. They can go on strike for a period of time and then commence legal aid work immediately thereafter.

Solicitors, as you will know, are under different constraints in that we have signed a contract with the Legal Aid Authority and if we breach that contract,

individual firms might find themselves completely debarred from criminal legal aid work.

After the SGM the Council made a commitment to engage more with our members. As a result, since the start of the year the Vice President, Andrew Caplen, and our Head of Legal Aid policy, Richard Miller, have made a number of visits around England and Wales. The most significant worry voiced is the introduction of a two tier contract arrangement will mean the death of smaller firms. The Society never sought a two-tier arrangement for duty solicitor contracts. In the face of the Ministry of Justice’s desire to ration the number we have pushed for an evidence-based analysis of the market and insisted that as many contracts as possible are available, there is maximum flexibility in terms of business models and final decisions are take on the basis of independent evidence from KPMG and Andrew Otterburn. If the evidence shows that there is an unacceptably high risk to our members, then the Government will need to reconsider their proposals.

Members have voiced a desire the Society to gather all the evidence against the cuts together in one easy accessible place. We have done that. You can find a link to our webpage demonstrating how the evidence support Law Society arguments at http://www.lawsociety.org.uk/represent ation/articles/inefficiencies-in-thecriminal-justice-system.

David Taylor, Council Member Partner in Hanne & Co, Clapham Junction. Graduated from the University of Kent at Canterbury in 1976 with a degree in Social Policy & Administration. He then joined the Citizens Advice Bureaux service, working in Sheffield & London, specialising in welfare benefits and employment. He was the manager of Battersea CAB for 10 years.

He joined Hanne & Co in 1988 and was admitted as a solicitor in 1994. His practice is in employment and regulatory law. He is a member of the Employment Lawyers Association, Association of Regulatory and Disciplinary Lawyers and the Industrial Law Society. He is an accredited mediator through the Centre for Effective Dispute Resolution. He was president of South London Law Society from 2003 to 2006.

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As we fight to secure further changes, we are determined to do more to reach out to as many members as possible. The greater the input from our membership, the stronger we are in fighting the cuts that threaten our profession, and our ability to serve those in need of its services.

LENDER PANELS

Some of you may be aware that a new process for managing applications to lender panels developed by mortgage lenders including Lloyds, RBS and Santander could adversely affect your business. The Council of Mortgage Lenders (CML) has appointed a single commercial provider, Decision First (a joint venture between Decision Insight Information Group and First Title plc), to manage the process by collecting and verifying data from applicant firms and making it available to subscribing lenders on their new platform, Lender Exchange.

The three lenders above will be the first users and have informed current panel members that registering is mandatory.

Other lenders are actively considering it.

The Society believes that a centralised application process is sensible and we have already offered to make this data available free to lenders. The CML and lenders have rejected our offer and chosen to appoint a commercial organisation to act as a “gatekeeper” instead. We are engaging with the CML and lenders to express our concerns about the lack of transparency, of published objective criteria, and of an appeals process, and to seek a sensible and practical solution, as we did with HSBC in 2012.

As part of this dialogue, we are also engaging with the Government to secure the support of Ministers and civil servants to work with us and the mortgage industry to broker a long term solution that is in the interests of consumers, lenders and the profession. If you suffer any ill-effects because of this new scheme please contact me.

Please contact me with any issues that you wish me to take up at dxt@hanne.co.uk or follow me on Twitter on @DavidTaylor364.

SOUTH LONDON LAW SOCIETY & LONDON SOUTH BANK UNIVERSITY

News

PASTORAL CARE

PROGRAMME OF CONTINUING PROFESSIONAL DEVELOPMENT EVENTS 2014

PRACTICE ADVICE SERVICE

Seminars start at 6.30 pm (unless otherwise indicated). Refreshments are available from 6.00pm.

Tel: 0870 606 2522

All seminars attract 1.5 CPD points.

practiceadvice@lawsociety.org.uk This provides advice from

Seminars are held in the London South Bank University Keyworth Centre. See http://www.lsbu.ac.uk/about/maps.shtml for a map and directions to the Keyworth Centre, LSBU.

experienced solicitors on legal

Seminars are free to SLLS members.

practice issues including

Seminars cost £50 for non-members. Non-member Firms booking more than 1 place are entitled to a 50% discount on all additional bookings.

conveyancing, costs, probate, Law Society policy and practice notes including anti-money laundering.

Lines are open from 9:00 am to 5:00pm Monday to Friday.

Places on all CPD seminars can be booked with Andy Unger via email ungerad@lsbu.ac.uk

DATE TIME

TOPIC LECTURER

2014

LAWYERLINE Tel: 0870 606 2588

Tuesday 4th March 6.30 pm

Employment Law Update Harry Dronfield, Solicitor, Hanne & Co

Thursday 6th March

The Court of Appeal and Family Law

6.00pm (Note earlier start)

Sir Andrew Mcfarlane, Lord Justice of Appeal

Tuesday 11th March 6.30 pm

Human Rights Law Update Sir Geoffrey Bindman QC, Solicitor, Bindman’s LLP, Joel Bennathan QC, Barrister at Doughty Street Chambers, Imran Khan, Solicitor, Imran Khan & Partners, Visiting Professors at LSBU

Tuesday 18th March 6.30 pm

Housing Update Giles Peaker, Solicitor, Anthony Gold Solicitors

Tuesday 7th October 6.30 pm

Criminal Law Update Joel Bennathan QC, Barrister at Doughty Street Chambers, Imran Khan, Solicitor, Imran Khan & Partners, Visiting Professors in Law at LSBU

Tuesday 21st October 6.30 pm

Family Law Update Robert Hush, Solicitor, Vice President SLLS

lawyerline@lawsociety.org.uk This provides advice on client care and complaints handling. Lines are open from 9:00 am to 5:00pm Monday to Friday.

PASTORAL CARE HELPLINE 020 7320 5795 This provides personal, financial, professional and employment advice. Lines are open from 9:00 am to 5:00pm Monday to Friday.

JLD HELPLINE 0800 085 6131 Pastoral care for junior lawyers.

Lines are open from 9:00 am to 9:00pm Monday to Friday.

The Clapham Omnibus 7

News

SOUTH LONDON LAW SOCIETY AGM – 14 NOVEMBER 2013

The Annual General Meeting of the South London Law Society took place at its usual venue at The Keyworth Building at London South Bank University on 14 November 2013 and we are grateful, as always, to the University for accommodating us and for providing refreshments.

The meeting formally approved the Minutes of the 2012 AGM

sole practitioner in Guildford specialising in Crime, Matrimonial

and also the accounts produced by Treasurer Gareth Ledsham

and General Litigation. His fame, of course, stems from

which showed healthy reserves.

defending those charged with terrorist crimes starting with “the

It is worth pointing out here that our only income is from

Guildford Four” in 1974.

subscriptions and, therefore, it is imperative that these are paid

Alistair entertained us at length with regard to that matter and

in a timely fashion and, of course, that membership continues to grow and that we bring in more money from this source. We have deliberately kept subscriptions low, indeed far lower than neighbouring Law Societies, with a view to attracting more members.

issues arising from it and to say that his talk was captivating would be an understatement because he spoke passionately and eloquently all from his personal memories and proved to be a truly inspirational speaker. We are hoping that he will write for us in a future edition of the Clapham Omnibus.

The only significant expenditure that we have year on year is in relation to editorship of the Clapham Omnibus, our Journal

Alistair was appointed an OBE for services to justice in 2002 and

which we produce three times per year. For 2014, we have taken

currently sits on the Law Society’s Human Rights Committee

the bold decision to take the editorship back “in house” and

and the Solicitors International Human Rights Group Executive

Committee member Richard Busby of Fisher Meredith is going

Committee.

to take this project forward. That will mean that our outgoings are significantly reduced. Obviously, all social events are

The AGM ended with the re-election of the following officers namely:-

intended to be self supporting or generate a small profit.

President Stephen Whitaker gave a verbal report and Council member David Taylor a written report which was circulated.

David did of course draw attention to the fact that this had

President – Stephen Whitaker Vice President – Robert Hush Hon.Secretary – Lawumi Biriyok

indeed been an eventful year for the Law Society, highlighting the “Reforms” in respect of both Civil and Criminal Legal Aid.

Treasurer – Gareth Ledsham

By far and away the highlight of the evening, however, was the

I am grateful to all who attended the AGM and only wish there

presentation by Alistair Logan OBE as our guest speaker.

had been more to hear Alistair speak. He has raised the bar very

Admitted as a solicitor in 1968, Alistair worked as a High Street

high for future speakers at the AGM.

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ACCESS TO JUSTICE AT LAMBETH COUNTY COURT News

From September 2013 there has been a new service at Lambeth County Court, pioneered by the London South Bank University’s Legal Advice Clinic. On two mornings a week members of the public can get assistance from a help Desk run by law students under the supervision of London South Bank University’s law department staff.

Professor Sara Chandler Past President of the South London Law Society.

Visiting Professor in Clinical legal Education at London South Bank University.

The aim is to fill a gap left by the Court Service who have had to close their own window where members of the public could ask for help with forms, fees and procedure. The increasing number of people who have no representation at Court and who do not know what forms they should be completing, or what to do with them once they have filled them in, became a problem for the Courts staff who set up telephone help lines, and advised members of the public to access forms on-line. However, for some people this is not an option. For those who have difficulty with computers, whose first language may not be English and those who have reading and writing difficulties, this seems like an insurmountable hurdle.

Friendly faces at Court

During 2013, the Court management approached the University’s Legal Advice Clinic to ask whether a help desk could be set up with student volunteers. The Court staff offered training on court forms, fees and basic civil procedure, and the Legal Advice Clinic staff gave students training in client care skills, including interviewing, listening, recording, giving information and referring. It is an important point that this is not an advice helpdesk, no legal advice is given. There are projects on other days of the week when members of the public can get legal advice. The students make referrals to appropriate agencies, and sometimes arrange urgent appointments for emergency help.

There have been 14 students who have completed their 8 weeks of volunteering so far, and a second group of 14 students will resume the help desk on the 29th January, to run through until Easter. The students have had a varied experience which has included assisting clients who have grave and urgent problems, as well as working through a number of enquiries for specific forms. What has been impressive is how much the students have learnt about vulnerable clients, for example, the gentleman who carried a card stating that he could not read and write and needed full assistance, or the clients who do not admit to having reading difficulties, but who need greater help, often saying they had not brought their glasses and so could not read the form.

Sometimes clients are distressed, and the students’ kindness and eagerness to help has made an immediate difference.

London South Bank University students help at Court

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Some clients are frustrated by the situation they find themselves in, and become quite angry. The students learnt how to help angry clients calm down and deal with the situation. One group of students had to assist a client who had just been told that a

News

warrant for possession of his home had been made in his absence even though he had arrived on time for the hearing, and was sitting outside the Court room with the housing officer, who went in on their own to see the judge, due to some confusion about which the client knew nothing.

Getting help at court is a fundamental part of obtaining access to justice, and the article 6 provisions of the European Convention on Human Rights for a right to “a fair and public hearing within a reasonable time” are incorporated into the our Human Rights Act 1998. The Convention aims to ensure equality of arms before the court. To realise this aim then article 6 rights must also involve the capacity of unrepresented parties to follow procedure and deal with the court forms where necessary. This has proved impossible for some people on too many occasions.

If people fail to return forms when there is a deadline for example, then their side of a dispute, may not be heard by the judge. Article 6 rights to a fair trial apply to “civil rights and obligations” as well as “any criminal charges”, but are most cited in criminal cases. The county court is the venue for citizens to bring their disputes before a judge, and the Convention seeks equality before the law. There is no equality of arms if a party cannot get help with court forms. The increase of unrepresented parties because of the cuts in legal aid, combined with cuts in the provision of the Court Service, has seriously diminished access to justice, and the exercise of human rights under the Convention, and our Human Rights Act 1998.

Some of the most vulnerable clients are those who have mental health problems, sometimes living on a short fuse. There has to be help at Court for the most vulnerable. Sometimes, the presence of security staff, there to protect court staff and the court in general, and who are accustomed to dealing with angry members of the public, deters some members of the public, and they fail to access help from the Court. Having a friendly face available to help is important for every court. LSBU students provide friendly help. At Lambeth County Court it is often the security staff who refer members of the public upstairs to find the students on the Help Desk.

The students have benefitted considerably because of the willingness of the judges to allow the students to sit in and observe hearings. The supervising solicitors or barristers from the University use the feedback from the students to run informal seminars so that the students have time to ask questions, and to reflect on what they have observed in Court. The students usually have opportunities to see Fast Track hearings on commercial contract matters, disputes of all kinds, for example between neighbours, sometimes debt claims, and other matters where the parties agree to allow students to observe.

The service will open again on Wednesday 29th and Thursday 30th January from 10.00 to 12.00 every Wednesday and Thursday until 27th March. Please let your clients know.

HELP DESK AT LAMBETH COUNTY COURT Wednesday and Thursday mornings 10am to 12 noon Help with Court forms, fees, and what to do with the forms.

No legal advice can be given Help Desk provided by London South Bank University with volunteer law students.

LSB RECOMMENDS LORD CHANCELLOR TO GIVE CILEX LAWYERS FURTHER INDEPENDENT PRACTICE RIGHTS

The Legal Services Board (LSB) has today announced its approval of ILEX Professional Standards’ (IPS) applications to enable it to authorise members of the Chartered Institute of Legal Executives (CILEx) to practise independently in Probate and Conveyancing, paving the way for CILEx members to practise independently in all areas of law.

The decision now goes to the Lord Chancellor, Chris Grayling, and for subsequent parliamentary approval, anticipated during the course of 2014.

If approved, members authorised by IPS will be able to practise independently in their chosen specialism, benefitting thousands of law firms and consumers.

IPS Chair Alan Kershaw said: “This is a special day for IPS and CILEx. We have cleared a significant hurdle and now we hope the Lord Chancellor and Parliament will move swiftly to approve these changes, opening the way for CILEx members to run their own businesses. CILEx members are specialists who are trained on the job and regulated to a robust standard. They have already been doing this work for years. IPS’ regulation will continue to develop in line with these changes in a risk-based and outcomes-focused manner, promoting the interests of consumers.”

CILEx President Stephen Gowland welcomed the announcement: “The LSB’s recommendation brings us closer to cutting the red tape that prevents CILEx members from serving the public to the utmost of their abilities. Allowing our experienced lawyers to practise independently in their area of specialism will stimulate the consumer legal services industry, create a more innovative market, and better meet consumer needs.”

Stephen Gowland added: “In order to set up my own firm I had to dual qualify as a solicitor, despite being qualified already through CILEx. When approved, these changes will help create new businesses, offering good value for consumers and serving communities.”

The decision announced today specifically relates to Probate and Conveyancing practice rights, and will allow IPS to regulate entities operating in these areas. Consequent decisions on rule changes for Litigation and Immigration services are expected shortly.

Currently, CILEx members are able to conduct many reserved legal activities only under the ‘supervision’ of an authorised person, most commonly a solicitor.

If approved by the Lord Chancellor and Parliament, IPS will be ready to approve applications for authorisation for both individuals and entities in early 2015.

IPS will apply in due course for CILEx to be able to license alternative business structures managed or owned by nonlawyers. That application, like the present one, will need to be approved by the LSB. The Clapham Omnibus 11

ANNUAL DINNER 2013 News

Our 2013 “Annual Dinner” was a rather different type of event but we did manage to keep up with our theme of going to iconic venues!

For the 2013 Dinner then 80 people visited The Shard and what a fantastic experience they had. The operation was slick, the views extraordinary and it really is a “must see” whether you live in London or are a visitor.

Therefore, two great venues for one great evening and a selection of photographs taken at The Shard accompanies this brief report.

Designed by the Italian architect Renzo Piano and standing approximately 310 metres high, The Shard is currently the tallest building in Europe. There are 72 habitable floors and we visited the Viewing Gallery and Observation Deck on the 72nd floor at a height of just over 800 feet.

For 2014, we will almost certainly revert to the more formal dinner format. The event will as usual take place in October and full details will follow as they become available in due course.

Our party arrived at 6.30pm and, actually, we could have stayed until The Shard closed. However, we left for 9pm to go to “Dinner” at another famous venue being the Winchester Room at The George Inn in Borough High Street.

Established in the Middle Ages and currently owned and leased by the National Trust, The George is the only surviving Galleried Coaching Inn in London.

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I hope very much that members and guests will continue to support South London Law Society’s social programme of which the Annual Dinner is, of course, the key event.

News

The Clapham Omnibus 13

Property

SOCIAL HOUSING FRAUD AND THE PREVENTION OF SOCIAL HOUSING FRAUD ACT 2013 Diane Calnan is Head of the Criminal Department at Fisher Meredith. Diane qualified as a Fellow of the Institute of Legal Executives in June 2002 and was admitted as a Solicitor of the Supreme Court of England & Wales in December 2008. Diane has been described as “Up and Coming” in Chambers 2014 and is praised for her “focus, determination and ability.”

Diane is a the Extradition Lawyers’ Association, The London Criminal Courts Solicitors’ Association, The Association of Regulatory and Disciplinary Lawyers, and The Institute of Legal Executives. She is currently serving as a committee member the Association of Women Solicitors, the Female Fraud Forum and is also a founding Committee Member of the Fraud Lawyers Association. Diane assisted in editing the 4th edition of the “Police Station Adviser’s Index” published

by Sweet & Maxwell.

WHAT ADVICE TO GIVE TO CLIENTS?

It seems that the issue of housing is a constant feature of the daily news, from the controversial “bedroom tax”, the “increased rents” of property in the private sector and the current “housing bubble” in the property market. Property is at a premium and everybody wants a piece of it. For those not fortunate enough to be able to afford to own or rent their own property in the private

sector, reliance is placed upon the local authority or social housing sector. As the 2013 Channel 4 documentary “How to Get a Council House” demonstrated; demand for social housing far outstrips supply. It is therefore not a surprise to find the social housing market has become a target for fraud. In order to address this issue the government has enacted the Prevention of Social Housing Fraud Act 2013 and has set aside a budget to tackle this issue.

The Act came into force on 15th October 2013 and provides local authorities with the power to prosecute those who unlawfully sublet their social housing. This Act creates two new criminal offences which depend on the level of knowledge or intent on the part of the offender;

‘KNOWINGLY SUBLETTING’

In circumstances where a tenant “knowingly” sublets or parts with possession of either the whole or a part of the property or ceases to occupy a property knowing that it is a breach of a term of the tenancy agreement. The punishment for anyone convicted of such an offence is a fine to a maximum of £5,000.

‘DISHONEST INTENT’

The second offence mirrors the first offence but requires a “dishonest” intention by the tenant. The punishment for anyone convicted of such an offence is a term of a maximum of 6 months imprisonment and or a fine of £5,000 if the matter is dealt with in the Magistrates’ Court and a term of a maximum of 2 years imprisonment and or a fine of up to £50,000 if the matter is dealt with in the Crown Court. The Court can also make an “unlawful profit order”, which requires the offender to pay the landlord an amount representing the profit made from commission of the offence and failure to pay this sum by the required date will incur interest.

The Housing Act 1988 has also been consequentially amended and provides that where an “assured tenant” has parted with possession or sublet a property in breach of the tenancy agreement they will permanently lose their status as assured tenant.

Defences available to a tenant charged with either of the above offences are that the tenant is the subject of actual or threatened violence towards them or a family member residing with them or the current occupier of the property, who is not the tenant, is entitled to apply to the court for an order giving them a right to occupy the property, which is likely to occur in relation to family proceedings.

As to whether a prosecution is commenced, will be a decision for a local authority irrespective of whether the local authority is the landlord or whether the property is within its area. Any proceedings must be brought within six months of the date upon which the local authority considers it has sufficient evidence to prefer a charge but no proceedings may be brought more than three years after the commission of the offence.

So, what is the position for housing associations in light of the fact that it is the local authority that is responsible for instituting proceedings? There are likely to be financial implications to consider in relation to any legal proceedings to recover a property. In October a number of local authorities and housing associations announced an amnesty in relation to those illegally subletting before it became a criminal offence.

The poster for one housing association http://www.metropolitan.org.uk/ashmole-subletting-amnesty/ informed its tenants that if they were illegally subletting their home they were being given a chance to hand back the keys and end the tenancy without risk of legal action if the keys were handed back by midnight on 31st December 2013. However, anyone with clients wishing to take up any future offer of an amnesty needs to ensure that the terms are clarified before disclosure of any criminality, as this offer required that the property was handed back with vacant possession, this might not be a problem but could be if there the person to whom the property is sublet is refusing to move out.

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RECENT FLOOD EVENTS CALL US ALL INTO ACTION Property

THE FLOODING MAY BE SUBSIDING, BUT WE CAN’T AFFORD TO LET THE MEMORIES OF ITS IMPACT DO THE SAME

There is no denying that in recent times the world has experienced some pretty extreme weather events. Last year was Australia’s hottest in living memory, in the Philippines Typhoon Haiyan became the strongest typhoon ever recorded, there were record high temperatures in Scandinavia, heatwaves and intense rainstorms across Europe and South America, and much of the US came under the grip of a polar vortex with a big freeze bringing many regions to a halt.

Here in Britain we saw the stormiest December in 44 years. The hostile winter continued into January and February 2014 with high winds and storm surges causing widespread coastal, river and surface water flooding, substantially impacting on individuals, businesses and infrastructure. The Met Office confirmed at the end of February it was the wettest winter in England and Wales since records began 250 years ago.

Although severe storms in the UK are not unknown, the relentlessness of recent events is certainly unusual with the full catalogue of flooding – tidal, fluvial, pluvial and groundwater flooding – all being experienced over a period of seven or eight weeks. Around 6,000 properties were flooded and politicians raised concerns about future flood strategy with the Prime Minister, David Cameron, calling the floods “a tragedy for all those affected” while urging the insurance industry to process claims as quickly as possible.

We are all acutely aware from the extensive media coverage of the floods that the impact on residents and their property can be hugely detrimental, not to mention the potential blight on a home’s value, but as awareness grows around the potential for flooding do homebuyers know who is responsible for advising them on flood risk?

A survey commissioned by Landmark Information Group revealed that only 42% of people investigated their flood risk before buying their home, while 55% of property owners in the UK expected solicitors to automatically investigate a property’s flood risk as part of the conveyancing process. Clearly there is an expectation from homebuyers to be assisted in discovering the level of risk, not least so they can look to mitigate this if required.

It is imperative that buyers know about any potential flood risk as early as possible and have appropriate insurance in place before contracts are exchanged and they become fully responsible for the property. Until Flood Re comes into force in 2015, properties found to be ‘at significant risk’ of flooding may prove extremely expensive, if not impossible, to insure. If a property cannot be insured, the solicitor will be unable to provide the 16 The Clapham Omnibus

necessary Certificate of Completion to the Lender to release the mortgage funds and therefore the buyer will be unable to complete the purchase.

The cost of a desktop flood report (around £20), with a risk assessment by accredited consultants, is inexpensive and could save thousands, if not tens of thousands, of pounds in the long term. It will clarify your client’s level of risk and help them identify the measures they could take to protect their future exposure to flood, while at the same time satisfying the Law Society Practice Note.

According to the Law Society Practice Note launched last May, conveyancers have a key role to play. The Practice Note states that ‘In all conveyancing transactions, when acting for a prospective buyer, tenant or lender, you should mention the issue of flood risk to your client and, if appropriate, make further investigations’. There have been some concerns over what ‘appropriate’ means, but with 200,000 homes built on flood plains between 2001 and 2011 and surface water flooding meaning risk is not exclusive to properties near the river or sea, it seems that ‘appropriate’ is becoming an increasingly inclusive term.

As the practice note concludes ‘it may not always be obvious that a property is at risk of flooding’.

Let’s all hope that we have seen the back of the floods this year, in the meantime we can be working together to ensure we are playing our part in mitigating the risks for all stakeholders, especially the homebuyer.

WHERE DOES THIS LEAVE THE LEGAL PROPERTY PROFESSIONAL IN TERMS OF REQUIRED DUE DILIGENCE AND COMPLIANCE?

John Pickford, Searches Manager, Thames Water Property Searches Thames Water Property Searches are experienced national providers of due diligence searches and training to legal property professionals. They protect conveyancers and their clients with a comprehensive range of products and a proven dedication to quality customer service.

A member of their team would be happy to discuss how they can assist you with your conveyancing search and training requirements. They can be contacted on 0845 070 9148 or by emailing twps@thameswater.co.uk. Alternatively, visit www.thameswater-propertysearches.co.uk.

THEA LIMITED SOLICITORS AND MEDIATORS Spotlight on...

WHAT IS A MEDIATOR? “People have problems Over the years Midland Bank Has very good ears And it hears Come and talk Talk to the Midland Come and talk To the listening bank”

If HSBC have discarded the Midland jingle, I would like to revive it.

It also sums up perfectly why you should engage a mediator.

People have problems, and their cry for help may not be heard by other people who are a part of those problems. They need to speak to someone who will listen and understand. Ideally, that person should also be able to help them resolve the problem.

Mediation is sometimes confused with meditation. Meditation is very individual focused, and aims for such things as stillness, alignment, connection, mindfulness and presence. Mediation is about relationships, and empowering all the people who are in those relationships to choose ways forward together where problems have arisen.

I am a solicitor and a mediator. People approach me far more often as a solicitor with their problems than as a mediator. There is a simple reason for this. They want to pay me to solve the problem, and to solve it in a way that works for them.

The founding partner of one firm I worked for summed up the solicitor’s role as “making other people do what they do not want to do.”

Midland Bank disappeared as a name at the end of the last century when its acquirer, HSBC, phased it out.

Yet I still remember the listening bank, even though I never banked with it, just as I remember that happiness is a cigar called Hamlet, the mild cigar, long after tobacco advertising was banned, even though I never smoked one.

“People have problems Over the years Mediators Have very good ears And they hear Come and talk Talk to a Mediator Come and talk To a listening bank”

Peter Webster

Principal,

Thea Limited

18 The Clapham Omnibus

The mediator’s role, by contrast, is to help everyone to find something that they are willing to do, where they are no longer able to do this unaided.

I can do this precisely by being a “listening bank”. If I can hear and understand all the perspectives on the problems from all those involved in the relationship or set of relationships, I can then help the parties identify their interests and the options for achieving them. I may then mediate a settlement based upon one of the options.

PEOPLE HAVE PROBLEMS

The message from the banks to people with problems has moved on. Nowadays, the promise is more than just a sympathetic hearing. It is an assurance that in 80-90% of cases, a loan of money will be forthcoming if the bank is approached.

In a mediation I attended recently as a solicitor representing my client, we were given a very similar message from the eminent QC my client and their opponents had paid many thousands of pounds to hire as mediator for the day. 80-90% of cases settle in mediation on the day or very soon afterwards. Statistically, we were almost certain to come away with our problems solved.

Sitting there with my solicitor’s hat on, I was less than impressed to be hearing this in a first private session with the mediator after an opening joint session where the parties had been very forthright and direct with each other. The mediator was not only not interested in the detail of the dispute, he was positively dismissive of any attempt to discuss it. Mediation for him seemed to be just an earlier, and less rushed, opportunity to do the sort of horse-trading on settlement figures that he had long been familiar with at the doors of the court. The mediation failed.

Nevertheless, with my mediator’s hat on, I would also want to make this claim for mediation. The next time I sit down as the mediator of a commercial dispute, I can reassure the parties that the last six commercial disputes that I have mediated have settled on the day or shortly afterwards. I would do it in the opening joint session, however, not in a private session with one of the parties, as there I would want to show I had heard and understood where they were coming from, and give them the opportunity to say the things that they were not prepared to say in front of their opponents.

Returning to the 80-90% success rate promised by the banks, we do not need to cast our minds back to the last century to remember the economic problems attributed to banks being over eager to lend money. Any solution identified and agreed upon at mediation still has to prove its worth afterwards through voluntary implementation by the parties. The Greek tragic poet Euripides famously put in the mouth of one of his characters the line, “My tongue has sworn, my mind remains unsworn”, and his line is still quoted more than 2,400 years later because it was not just characters in ancient Greek tragedy who promised to do things they had no intention of doing in order to obtain something they wanted from someone else.

Spotlight On...

brings, and can bring it a great deal sooner. The loss of absolute certainty of a final outcome (subject to appeals) and the chance of total victory is compensated by the removal of personal and cash flow stress, wasted management time, and the risk of an adverse outcome.

THE LISTENING BANK

Banks may listen, but they do so with a view to receiving money, or disbursing it.

Mediators should listen, but they should do so in a way that they can understand the problems that the parties are grappling with, and show that they understand them.

Peter was part of the 1996 Newick Park Initiative (NPI) Conciliation in Rwanda team.

This is why it is so important to listen to the parties first before trying to get them to sign up to “solutions”. The bankers who approved sub-prime mortgages without listening in the way Midland Bank promised to do have guided some of those whose problems they “solved” to financial ruin. Mediators who assume that any “settlement” that they can guide the parties to on the day represents a success risk doing exactly the same.

Mediation is a good process not just because it results in a settlement in 80-90% of cases. This figure actually compares unfavourably to the court process, which will settle every matter properly referred to it – eventually. It is also not very different from the settlement rate achieved through without prejudice negotiations before mediation became fashionable.

The real virtue of the mediation process, in my experience, and what differentiates it completely from the usual alternative of going to court, is that it provides a nonjudgmental hearing for the parties. That is not to say that the mediator cannot reality test each party’s case by asking searching questions. The parties though have the comfort of knowing that the neutral and impartial mediator that they are engaging with will not give judgment against them at the end of the day because of something they say in the mediation.

The opportunity instead is for the parties and any advisors they have with them to sit in judgment on their own case and their opponent’s as the mediator reflects both back to them. The vast majority of the commercial cases that I have mediated have involved parties with solicitors, and some have brought barristers and expert witnesses as well.

One of the obvious flaws in the litigation process, from the point of view of the parties, is that their whole team may never engage with the whole team of their opponent until the final trial, by which time substantial costs will have been incurred. Solicitors write letters to solicitors, expert witnesses produce reports and meet to produce joint statements, barristers settle pleadings and exchange skeleton arguments: everyone tangos with their counterparts and no-one may feel that they have a sufficient grasp of the case to settle the outcome. Mediation provides that same focused time that the trial

It is the fashion in commercial mediations for there to be just one mediation meeting, which may last well into the night, at which a dispute either settles or it does not. Either way, at the end the mediator is functus officio (discharged from his role), and the dispute either disappears or rumbles on. Commercial mediation agreements typically have clauses preventing the mediator being drawn back into the dispute, unless there is a court order to that effect, and substantial further fees are paid.

The approach in family mediation – another area in which I practise – is quite different. Here, the couple normally meet with the mediator in a series of sessions lasting 1-2 hours each. They are rarely accompanied by solicitors or other advisors, and they and the mediator normally stay in the same room the whole time. The aim of the mediation process is not to settle the financial affairs of the couple (including provision for any children and contact arrangements), but merely to formulate a set of proposals which the couple can then take back to their respective advisors. Obviously, as mediator, I will challenge the parties on any proposals which are likely to be vetoed by one or other set of advisors or the court because they are too much at odds with general principles of law, but if there is disagreement in this area, I will ask the parties to seek their own advice between sessions.

Couples who are separating often have difficulties listening to each other. The mediator plugs that gap and ensures that both of them are heard. Parties to commercial contracts whose relationships have broken down often have similar needs.

The Clapham Omnibus 19

CIVIL LEGAL AID – WHERE ARE WE NOW? Legal Aid

If you have a continuing legal aid caseload you will, like me, be left reeling by the government’s grimly determined onslaught on all things legal aid (and all things legal but that’s a longer topic). I have found the sheer number of reforms and consultations being pumped out not at all easy to keep on top of. Immediately after the battering from LASPO came the nicely timed ‘Transforming Legal Aid: the Next Steps’ with its wide raft of further proposals aimed at slicing another £220 million from across the legal aid budget as a whole. Public Law practitioners also saw the proposals for their fees, which they had effectively contracted only a few days before, being reduced by 10%.

16,000 responses to that consultation have sadly not moved matters much further along, apart from in the civil legal aid field. We then had a further consultation on ‘harmonising fees’ in June 2013, swiftly followed by ‘Judicial Review – Proposals for further reform’ in September 2013 and a further consultation on legal aid remuneration to coincide with the planned Single Family Court in October 2013, all rounded off with the consultation on changes to court fees in December 2013. All this in addition to procedural reforms and the clampdown on conditional fees that civil practitioners have had to cope with.

That these consultations are still being issued whilst the effects of some aspects of LASPO are still under MoJ review is to be expected in the current climate but still very hard to take. The MoJ will look to publish their review on LASPO later in 2014 but the evidence is already there that the grand plan, such as it was framed in the impact assessments, hasn’t worked and that legal aid provision has fallen off a cliff as the MoJ and LAA were warned by the representative bodies for the various areas of practice. What did the MoJ really expect to happen? As we all knew and said, the reforms were too drastic and went far beyond what was necessary to cut the legal aid budget and has restricted access to justice.

The figures themselves are startling. From 2007 to pre LASPO there was a 30% drop in civil providers. There was an average 5% reduction in the number of contracted legal aid providers for each of the past 6 years, prior to the latest contract which saw off many more.

Apart from the decline in firms who actually went through the arduous application and saw pursuing the contract through to conclusion, the imposition of matter starts that were allocated without regard to previous usage or size of firm has seen the numbers of people assisted by legal aid dropping significantly across the whole spectrum.

LAA statistics in the following table show Legal Help New Matter starts reported in the last 3 years as a background; 20 The Clapham Omnibus

Category of Law

2012-13

2011-12

2010-11

41,014

39,212

34,052

183,313

211,142

243,413

29,126

36,589

42,300

Debt

6,588

10,566

13,438

Clinical Negligence

2,849

3641

3977

Immigration and Asylum (figures given together)

47,316

52,243

52,685

Welfare Benefits

12,384

16,152

18,848

Action against the Police

2,925

3,965

3,619

Community Care

3,902

4,679

4,207

Employment

3,437

4,120

4,451

280

393

1,104

1,234

1,463

1,473

314

507

827

Mental Health Matrimonial Housing

Consumer General Public Law Personal Injury

The figures for the year to April will be produced shortly after publication of this issue but current figures the writer has seen for the period April 2013 to 6 January 2014 show that help in Matrimonial cases is running at 11% of the average for the previous 3 years with only 3 months to go to the full year.

Over the same period and compared with the average levels of assistance for the preceding 3 years in each category, Debt is now running at 1.8%, Immigration 32.5%, Clinical Negligence 2.6%, Mental Health 59%, Public Law 47.6%, Actions against the Police 44.8%, Community Care 44.6%, Housing 31%, Personal Injury 5.4%, Welfare Benefits sadly suffering enormous change with only 2 new matter starts reported since April 2013 – a reduction of a very sad 99.9% in acts of assistance. It gets worse in the employment and consumer general categories – there are no reported matter starts since April 2013.

A huge concern for practitioners is that if the allotted new matter starts under their contracts are not used, is there a risk they will be seen to be no longer required? This may lead to further trimming in future years. It is unhelpful that the LAA can do very little to rectify a situation where one provider runs out of their allocation whilst another does not. Providers need to inform their contract managers if there are any allocation concerns.

Legal Aid

Richard Busby is a specialist accredited family solicitor and partner at Fisher Meredith LLP. He is a member of Resolution’s national Legal Aid Committee.

Even pre-LASPO, the volume of acts of assistance for civil legal aid on the MoJ’s own statistics from June 2013 had fallen from 1.4m in 2009/10 to 0.9m in 2012/13, a fall of 35% and it will only fall further.

To make up part of this shortfall, LASPO continued and trumpeted a regime for Exceptional Case Funding. The exceptional funding scheme allows the LAA to fund cases which would otherwise be out of scope, provided the application meets the additional exceptional funding criteria, as well as the client passing the means test and the case meeting the general funding code criteria. When LASPO was going through Parliament, the MoJ made representations that this scheme would help hundreds of people otherwise left without legal aid. It is and always was designed to cover cases in the public interest of considerable complexity.

The MoJ’s own statistics bulletin published in June 2013 says that the MoJ expected from April 2013 that, “With the removal of more work from legal aid scope it is anticipated that the relatively few cases, 161 in 2011/12, that merit exceptional funding may increase reversing the current downward trend”.

In recent pre-LASPO years, the LSC/LAA granted 107 such applications in 2009-10 and 63 in 2011-12. This was down from 121 out of 256 applications in 2007-8.

Yet despite MoJ optimism, very few applications have been granted since April across all categories – LAA figures reveal out of nearly 600 applications for funding, 11 have been granted. These applications are notoriously time consuming and difficult for practitioners to put together and the LAA guidance is ineffective. In reality, unless the MoJ review urgently, it will be left to a judicial review to lay down proper guidance on the operation of the scheme because otherwise deserving cases, many regarding people under a disability, will be left unfunded.

An independent study released in 2014 by the special commission headed by Lord Low ‘Tackling the advice deficit: a strategy for access to advice and legal support on social welfare law in England and Wales’ found amongst many other things that the ‘exceptional case funding’ scheme was unworkable in practice and needed reform.

One of the central tenets of the government’s thinking was that solicitors were unnecessary in large numbers of cases and that there needed to be a massive push toward mediation. As the MoJ have said; “Mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontational and stressful experience of going to court.”

(MoJ Press Release, 7 Jan 2014 - https://www.gov.uk/government/news/new-lawwill-keep-separating-parents-and-couples-away-from-court) The government thought that by setting up an information hub outsiders would be able to guide themselves through the process - www.gov.uk/divorce for example – they expected people to attend mediation in the same number and to keep litigants in person out of the court process.

The figures reveal this has not worked in the slightest. From April 2012 to April 2013, there were well over 62,000 legal aid referrals to family mediators. Shuffle forward post LASPO and family mediation referrals have shrunk by over 35%. The number of ‘help with mediation’ claims submitted is around 20 but surprisingly the number of people attending MIAMS appointments is down 57% over the same period pre LASPO. It all looks like a policy that was rushed through without proper care or thought as to the likely outcome. What is astonishing is that the MoJ are openly scratching their heads and simply do not know why there is such a low take up for mediation. The

previous legal aid minister, Lord McNally, sent a begging letter to mediators asking for ideas to help promote mediation.

There seems to be no understanding for the fact that so many family referrals were made through solicitors. There may be several factors here including poor communication failing to counter misconceptions as to what legal aid is still available. Indeed, the MoJ have seen the need to set aside £25 million into raising the profile of family mediation.

Considering funding an entire year’s budget for legally aided ancillary relief cases cost £19 million net, one wonders if the financial aims of the government could have been better met by tightening up on unmeritorious applications rather than wholesale dumping of large areas of work. Practitioners need to do their bit too. Representative bodies such as Resolution are seizing the moment and petitioning the new legal aid minister, Shailesh Vara and the justice minister, Simon Hughes to listen.

A major issue is that members of the public simply do not know where to go or do not understand the information available – the official website statistics published by GOV.UK show that from July-December 2013 510,000 page views on the justice website led to 178,000 views on the ‘check if you can get legal aid’ page and only 7,000 viewed the ‘Find a Legal advisor’ page. The find a legal advisor page has been heavily criticised but it cannot be right that the figures for members of the public getting through to it are so low. GOV.UK are reviewing the justice website and have plans to upgrade and replace it.

In addition to all this there is a palpable feeling that the LAA, following the name change in April, have changed outlook.

They are still focused on the need for access to justice but they are on a practitioner level much more difficult to deal with and it is much more common now to have to proceed to review of LAA caseworker decisions than it used to be.

The LAA also want to push providers into making electronic submissions very shortly and only listened at the very last minute to the horror stories and pleas of some pilot providers and representative bodies as to the dire problems encountered before rolling the pilot out nationally, to a largely unsuspecting first wave of firms who were told that the pilot scheme had been successful. This would have been a huge drain on the resources of providers and thankfully the LAA have pulled back and pledged to rectify delays in the system before rolling it out, though we can still expect it soon. The various representative bodies are to be congratulated for this small victory.

Always a bright side, I could be a criminal practitioner.

The Clapham Omnibus 21

CRIMINAL LEGAL AID UPDATE Legal Aid

The Ministry of Justice’s current proposal is to save £220 million by 2018/19 by imposing cuts on the legal aid budget. Although the more ill-advised propositions – price competitive tendering and the removal of a person’s right to choose their own solicitor – have now been delicately swept aside, there remains the blunt proposal of a cut in fees of 17.5%.

The position of the Lord Chancellor, Chris Grayling and the Ministry of Justice, as of 04 February 2014, is this. It is still blindly pursuing a cut to the fees in criminal legal aid of 17.5%. Mr Grayling intends to meet with criminal solicitors (at an undisclosed time, date and location) in the following weeks to further discuss the ‘sustainability’ of criminal legal aid sector work. In brief, the Ministry’s proposals for criminal legal aid are: • to pay only a flat fee in both magistrates’ and crown courts, irrespective of plea; • the imposition of a single national fixed fee for police station work and; • the abolition of the ‘escape mechanism’ from fixed fees paid in relation to police station work.

The Ministry of Justice has not yet provided a response following receipt of a bumper set of replies to its consultation paper, ‘Transforming Legal Aid: Next Steps’. Although this was eagerly anticipated to be available before Christmas last year, it is now expected at the end of February, approximately two months late.

In short, cuts are proposed but what might happen if they are implemented? A demonstration, the first of its kind within the legal sector, took place at the beginning of this year, outside criminal courts across England and Wales. It proved the very real unity between both barristers and solicitors on this important issue. In most courts, the full morning court session of between 10:00am and 2:00pm lacked an important element lawyers. Advocates refused to enter the courtrooms and this perhaps gave some insight into what courts might look like with less of them about. I myself was standing in the rain outside Westminster Magistrates’ Court that morning joined by hundreds of others. Predictably, many courtrooms simply ground to a halt.

Despite threats of disciplinary action from 22 The Clapham Omnibus

the participants’ supervisory bodies, no disciplinary action has been taken.

If the income stream is damned to a trickle, the budget pool allocated to paying solicitors’ wages can only shrink. Firms are then faced with the choice of either consolidation, reduction in the number of solicitors it employs, or employing cheaper staff. Some firms have already imposed salary cuts of up to 15%. Those qualified people currently working in the sector may well choose to leave it and trainee solicitors may be discouraged from ever joining it. Many defence practitioners may simply lose their jobs. This applies both to criminal solicitors and barristers.

Firms are going to have to consider increasing their less-qualified paralegal staff because that would be cheaper. Defence litigation is mentally and physically demanding. It is not pleasant leaving a warm bed in the dead of night to attend a distant police station only to meet a bad-tempered detective and represent an

Legal Aid

Graeme Rothwell a criminal solicitor and advocate at Saunders Law Limited. He works in police stations and magistrates’ courts across central London. His varied caseload is funded predominantly by legal aid. He is passionate about fairness, access to justice and providing a solid and unshakeable service to his clients.

He spent his formative years in Durham, read for his law degree in Sheffield and completed his Legal Practice Course in Nottingham. After qualifying and cutting his teeth in practice in Sheffield, he relocated to London, joining Saunders Law Limited in 2010.

uncooperative, anxious or tearful client. It is a sacrifice of ‘spare’ time and outside the usual office hours of nine ‘til five. Without fair recompense (when I type ‘fair’, I mean sufficient to be able to pay the bills), skilled and capable people will either be unwilling or unable to do the work. Someone has to do it but they are going to have to be paid a lot less.

The consequent loss of experience and quality will increase the likelihood of mistakes.

That directly increases the threat to a client’s liberty. Those solicitors remaining in publicly funded work are going to have to find more time to take more cases on to make up for that missing 17.5%. Forcing lawyers to decrease the amount of time spent on individual cases is almost certain to encourage carelessness. Some have even interpreted the proposals as implicit instruction to defence practitioners to put pressure on a defendant to plead guilty in all but the most hopeless of prosecutions.

proposing to squeeze particularly hard on an entirely different thing. If it chooses to ignore the growing advice against such action, it might be wise to step back a few paces. Make sure you cover your ears. In fact, cover everything. It’ll get messy.

Lengthy proceedings would be considered financially unattractive. Quick cases would be profitable cases. There is a real risk of quality being driven down. An increase in miscarriages of justice, complaints from defendants and increased appeals may in turn lead to the clogging of those ever-lovely (and ever-so-expensive to run) crown courts.

Costs are not driven down but surreptitiously squeezed from one part of the system to another.

Anyone cursed with having to observe a Crown Prosecution Service representative in the magistrates’ court on a daily basis sees the effects of cost-cutting in a most pronounced way. They would see that through amputation and emasculation that body quite often jerks involuntarily around, forced to discharge its functions in the poorest manner imaginable. It regularly fails to do an efficient job. This causes delay, wasted hearings, frustration to the magistrates and increased costs. Again, costs have been forced from one part of the system to another.

The experience should teach us at least one thing: employing capable and experienced lawyers saves the system unnecessary cost, it does not cause it. The Criminal Justice System and the lawyers involved with it, has evolved organically, slowly and carefully for centuries. It works but it’s delicate. Too big a shock is likely to send it spiraling beyond its reasonable functioning limits. Too much pressure in one place is likely to cause an explosion elsewhere. Although Mr Grayling asserts this is not going to happen, he has not given reasons for this. The ‘man on the Clapham omnibus’ might be forgiven for concluding that neither he, nor the Ministry of Justice, have a credible or sustainable argument to put forward.

There are wider concerns for the business community too. The justice system in England and Wales is regarded as one of the fairest and best there is. That fact draws companies to this country to conduct business in what is internationally perceived as a fair and stable environment. That reputation has value. Mahatma Ghandi believed that “… a nation’s greatness is measured by how it treats its weakest members….”. The weakest and most vulnerable members of our society would almost certainly suffer if the cuts were implemented and, if you agree with Ghandi, so too would the reputation of our nation. Anyone found responsible of deliberately under-funding the system which supports those ideals might find themselves criticised for indulging in a casual act of commercial vandalism.

So, all this clumsy manipulation and forceful squeezing might be relatively harmless when dealing with a stubborn tube of toothpaste. If the thing explodes you might just ruin your shirt, or make a mess of the bathroom. The Ministry of Justice is now The Clapham Omnibus 23

Legal Aid

UNJUST - A PHOTOGRAPHIC SERIES

For the last decade, I’ve worked as a campaigner for a number of different charities, addressing issues such as health, disability, equality, and partnerships between charities and government. In recent months, one of the issues which has often come up has been around ensuring that people have access to mechanisms which are designed to help them challenge decisions, either through processes like judicial review, or using legal aid.

I have often used photography as a mechanism to help strengthen these campaigning activities, as well as pursuing my own photographic projects outside of work. Recently, I was invited to photograph the protests which took place in January against funding cuts to legal aid. An image from the protest outside Westminster Magistrates Court features on the cover of this publication.

At the protest, I was inspired to hear the stories, opinions, and experiences of people who have used legal aid to help challenge injustice. I was struck by the enormous importance of a robust legal system which can be accessed by all, regardless of their circumstances.

I met people whose own experiences highlighted this. There are many high profile (and less well-known) instances where people have been falsely imprisoned, and inevitably, it was through access to legal aid that people were subsequently exonerated and released.

Further research made me realise just how often such miscarriages of justice had happened. Coalitions like Justice Alliance UK are doing incredible work in raising awareness and challenging the cuts. Their petition ( http://chn.ge/1kG1SuG ) against legal aid cuts has (as of this writing) gained over 16 000 signatures.

I started to think about what I might do, how I might try and tell some of these stories, combine the ten years of charity campaigning with a passion for photography that tells stories, that brings life and humanity to the experiences that people have endured. And perhaps at this critical time, I started to think about what might help bring attention to the very real threat that the cuts will result in, and the impact of changes to the justice system.

As a result, I’m hoping to develop a series of portraits of people who have been released from false imprisonment, and have been working with legal firms, academics, and voluntary sector organisations to try and make this happen. The support for the project has been amazing (especially given that I don’t have a legal background), and I’m incredibly grateful for all the help I’ve been provided with so far.

While these images will only tell part of the story about miscarriages of justice, I thought it was important to show the people, the humanity behind the cases that people may be familiar with. I want to show that these instances aren’t just about column inches but about lives.

In October and November, three venues (two in London, one in Sheffield) have already agreed to display the resulting images which I hope to be able to take over the summer. And while I’ve been heartened by the help I’ve received from people so far, I know that the project could be even stronger with more participation, more support.

There are three ways you may be able to contribute: 1) Helping me access people who have experienced a miscarriage of justice and false imprisonment in the UK and would be willing to have their photograph taken for the series; 24 The Clapham Omnibus

Portraits taken during the protest outside Westminster Magistrates Court.

Clockwise from top right: Nigel Lithman QC, Sue Willman, human rights solicitor at Deighton Pierce Glynn, Diane Abbott, Labour MP for Hackney North and Stoke Newington, Patrick Macguire, Maguire 7.

2) Promotion and marketing of the exhibitions in the fourth quarter of the year, to ensure as many people see the series as possible. I’d also welcome any information about other potential venues or locations which might be interested in exhibiting the work; 3) Financial or other in-kind support to help cover the costs associated with the project, such as travel and exhibition costs.

If you can provide support with any or all of these parts of the project, I can be reached at tom@threepractices.com. And even if you can’t help directly with any of these, I hope you will find the time to visit the venues which will exhibit the work, or share information about the project with others who might be interested.

Practice Management

THE CENTRE OF EUROPEAN LAW, KING’S COLLEGE LONDON 40TH ANNIVERSARY 2014 The Centre of European Law has a fine tradition of teaching and research into all areas of European Union Law and celebrates its 40th anniversary in 2014. It enjoys a reputation of excellence for offering a distinguished programme of public lectures, seminars and conferences.

The President of the Centre of European Law is Professor Sir Francis Jacobs, KMCG, QC and its current directors are Professor Andrea Biondi and Professor Takis Tridimas.

Over 300 students are currently enrolled on our four Postgraduate Diploma/MA Programmes in EU Law, EU Competition Law, Economics for Competition Law and United Kingdom, European Union and United States Copyright Law. These programmes have an excellent reputation amongst the top UK and EU Law firms who sponsor their employees to take the programmes.

As well as a lunchtime lecture series in EU Competition Law, the Centre also is holding a conference in EU Environmental Law on 14 February, Annual EU Law Conference on 21 February and a conference entitled Britain Alone on 9 May.

26 The Clapham Omnibus

We are also planning seminars in 2014 on EU Procurement Law, IP Law, Access to Justice and State Aid to the film industry. Full details can be found on their website http://www.kcl.ac.uk/cel or please contact the centre cel@kcl.ac.uk to be placed on their mailing list.

All of the Centre’s activities are closely connected with research undertaken at King’s, and aim to contribute to the creation of a rich and stimulating research environment. This makes the Centre a true centre of European law, unique and recognized in the UK, Europe and beyond.

Practice Management

ICONIC DOGS TRUST SLOGAN MARKS LANDMARK ANNIVERSARY

‘A dog is for life, not just for Christmas®’ honours 35 years of relevance Last autumn, the nation’s largest dog welfare Charity, Dogs Trust, commemorated thirty five years of its iconic slogan – ‘A dog is for life, not just for Christmas®’. The impactful slogan is one of the UK’s most memorable phrases of all time and is now firmly cemented in the public consciousness - perfectly delivering the powerful message of responsible dog ownership to the masses and continuing to significantly reduce the number of abandoned dogs after the festive period. In 1978 the Charity estimated that 20 per cent of dogs were given as gifts, which has since reduced to less than 2 per cent today. Although the figure has dropped significantly, it means that around 16,000 dogs are still being purchased as gifts every year. Sadly, with the rapid increase in dogs being bought on impulse online, it is clear that the slogan remains as relevant today as it did 35 years ago. The slogan was created in 1978 by Dogs Trust current CEO Clarissa Baldwin OBE unlike most other iconic slogans which are created by advertising agencies. One evening, Clarissa was sat at the kitchen table chatting to her husband about the urgent need for a campaign to stop puppies being gifted at any time of the year but specifically at Christmas when she had a light-bulb moment and the slogan was born - proving that charity really does begin at home! Clarissa has since been awarded an OBE in 2003 for her work in animal welfare. Her success with Dogs Trust, coupled with the longevity and popularity of the slogan, has meant a ‘paws-itive’ improvement in dog welfare across the nation.

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“IT’S THE ECONOMY, STUPID!” OR IS IT? Chris Marston, Head of Professional Practices, SME Banking at Lloyds Bank considers the prospects for law firms in 2014

Chris Marston, Head of Professional Practices, SME Banking, Lloyds Bank www.lloydsbank.com/solicitors

You may recall the election slogan of Bill Clinton’s successful presidential campaign in 1992, designed to reinforce the US economy as the battleground for that election. Over the past twenty years the phrase has been hijacked by political and business commentators and businesses, including law firms, have used it in recent times to explain their poor performance.

businesses (65 per cent) stated that they are currently more optimistic than they were six months ago, while less than a tenth (9 per cent) stated that they are less so. The overall net confidence balance of 56 per cent is a 33 point increase from July 2013, when the net balance was 23 per cent.

With a new year now upon us I’ve taken a look at some recent trends and economic indicators for the UK in 2014.

Prospects for the first half of 2014 continue to look positive with expectations for total sales, orders and profits in the next six months – the three key indicators of business confidence – all increasing. The three indices remain well above their respective long-term averages and point to stronger economic growth in the first half of the year.

BUSINESS CONFIDENCE HAS HIT A 20 YEAR HIGH

That’s the key finding from the latest Business in Britain report from Lloyds Bank Commercial Banking. This twice yearly report, now in its 22nd year, canvasses the views of 1,500 UK businesses and shows that firms are continuing to grow in confidence, driven by expectations of stronger profits, orders and sales over the next six months.

The survey’s key Business Confidence Index tracks businesses’ views of expected sales, orders and profits for the coming six months and presents the overall “balance” of opinion, weighing up the percentage of firms that are positive in outlook against those that are negative.

In this latest report, the confidence index has increased by 15 points to 45 per cent, from 30 per cent in the previous survey in July 2013. This is the fourth consecutive increase in the net balance of business confidence and is now just short of the survey high of 46 per cent recorded in January 1994.

Companies also remain optimistic about prospects for the UK economy and the overall net balance of firms that are now more confident about the economic outlook is the highest it has been since January 2007. Just under two thirds of 28 The Clapham Omnibus

SALES, ORDERS AND PROFITS LIKELY TO CONTINUE TO RISE

More than half of businesses (55 per cent) said that they expect their orders to increase during the first half of the year; compared to just over one in 20 (six per cent) that think orders will fall. The resulting 49 per cent overall net balance represents a 12 point increase from July 2013.

Six out of ten businesses (60 per cent) stated that they think their sales will increase in the next six months, while just under a tenth (9 per cent) expect a drop, leading to a 51 per cent overall balance.

This is a 15 point increase from the second half of last year.

The balance of firms anticipating greater scope for increasing prices over the next six months has also increased by ten points to 23 per cent. This is the highest balance since 2008. Firms’ hopes of rising prices may help to underpin their expectations of stronger profits over the next six months. The net balance of firms expecting rising profits increased for the third consecutive period, to 35 per cent and came close to the survey high of 38 per cent seen in 1993.

RENEWED HOPE FOR INVESTMENT AND RECRUITMENT

Firms are also becoming more hopeful about recruitment prospects with the fourth consecutive rise in the balance of businesses expecting to hire more staff over the coming six months. A quarter of businesses (27 per cent) said that they will increase staff numbers during the first half of the year and one in ten (10 per cent) said they planned reductions. This results in an overall net balance of 17 per cent expecting to boost staff numbers, which is a rise of five points from July last year and stands at a six year high.

At the same time, the balance of companies reporting challenges in the recruitment of skilled workers continues its post-crisis recovery with a six point increase to 32 per cent. The recent increase suggests a potential strain in the market for skilled labour which could put pressure on pay growth, although the index is still well below its 1997-2007 readings which averaged 47 per cent.

Expected capital expenditure is also on an ongoing upswing. The report shows that just over a quarter of businesses (27 per cent) expect to increase their capital expenditure over the next six months while just one in ten (11 per cent) are planning cutbacks. This results in a net balance of 16 per cent planning to ramp up investment in the first half of the year, which is an increase of ten points from July last year and the highest level witnessed since 1994. The net balance has been in positive territory for three consecutive survey periods, for the first time since 2006.

UK DEMAND AND CASHFLOW ARE LESS OF A CONCERN

In light of growing hopes for exports, weak UK demand is no longer such a

worry for businesses. A third of businesses (31 per cent) have concerns about domestic markets, which is a significant drop from July 2013 when nearly half (45 per cent) of businesses stated it was the biggest challenge they faced.

Similarly, cashflow is now much less of concern for majority of British businesses.

Eight out of ten (81 per cent) businesses stated that they are not currently experiencing cashflow problems - a twelve point increase from 69 per cent in July 2013.

ALL COMPANY SIZES SET TO DO WELL

Business confidence increased particularly strongly for companies with a turnover between £1-£15m and for those turning over more than £15m. The net confidence balance for these firms is up eighteen and nineteen points respectively leaving both at 49 per cent. The overall net confidence balance for firms with a turnover below £1m is 34 per cent which is an increase of five points from the previous survey.

CONFIDENCE CONTINUES TO IMPROVE ACROSS ALL SECTORS IN PARTICULAR THE RETAIL AND WHOLESALE SECTOR

Business confidence rose in all sectors, for the third consecutive survey. All sectors reported double digit increases, with the exception of ‘business and other services’, which saw an eight point rise.

The retail and wholesale sectors reported the largest increase in confidence – a 20 point jump to 44 per cent; followed by manufacturing, up by 19 points to 57 per cent; and transport and communication which rose 18 points to 46 per cent.

BUSINESS CONFIDENCE IMPROVES ACROSS THE UK

Business confidence increased in all regions most notably in the North and West Midlands where the balances increased by 21 and 18 points respectively. The East Midlands & East of England saw the smallest improvement of 10 points.

LARGEST ANNUAL INCREASE IN FIRST-TIME BUYERS SINCE 2001

First-time buyers (FTBs) are on the rise with 2013 witnessing the biggest annual increase since 2001. The recentlypublished annual Halifax First-Time Buyer Review shows the number of FTBs grew by an estimated 22% in the year - the second consecutive annual increase following a 13% rise in 2012.

There were an estimated 265,000 FTBs in 2013, up from 218,000 in 2012. While this was the highest annual total since 2007, it was still nearly 30% lower than the annual average between 2003 and 2007 (370,800).

Mortgage affordability has improved in recent years, aided by record low mortgage rates. There has also been an increase in the proportion of areas that are affordable for FTBs since 2007.

Close to half (45%) of all FTB purchases in 2013 were below the £125,000 Stamp Duty threshold. A similar proportion of properties bought by FTBs were priced between £125,000 and £250,000.

Martin Ellis, Housing Economist, commented: “Low interest rates, improvements in consumer confidence and Government schemes, such as Help to Buy, all appear to have contributed to the rise in the number of first- time buyers.

“However, many potential first-time buyers continue to find raising the

necessary deposit a problem. The Help to Buy mortgage guarantee scheme should enable more buyers to get on to the property ladder with smaller deposits.

Continuing pressure on household finances during the next 12 months will no doubt remain a constraint.”

SO THE ECONOMY’S FINE, IS IT?

The past couple of years have seen unprecedented regulatory and competitive changes to the legal profession, and the economic backdrop has been challenging for many firms.

However, the ‘new normal’ following the Legal Services Act and LASPO is now established and firms should by now be equipped for it.

Time will tell whether we’re seeing the beginning of a sustainable recovery, but it does now seem that we’re seeing improvements and that a number of forward-looking indicators are favourable.

Solicitors may be operating this year in a UK economy that is looking brighter than at any time since 2007.

Success for law firms in 2014 will be determined by the way they address the business issues, and that means keeping the client at the heart of their business, managing risk effectively, embracing IT, developing an internal referrals culture and finding more efficient ways of working. Managing lock-up and cashflow will be critical because experience tells us that professionals can face cashflow pressures in an economic recovery, as they get busier and invest more in WIP and debtors. Our specialist relationship managers are working with their solicitor customers to help them take the right steps in order to equip themselves to be winners over the next few years.

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COURT GIVES THUMBS UP FOR FAMILY ARBITRATION Family Law

On 14 January 2014, The President of the Family Division, Sir James Mumby, in reference to the S v S divorce case announced that the family court fully supports arbitrated cases; and also encourages any future arbitrated cases to be dealt with in the same way, speedily with a considered approach.

THE DIVORCE CASE

The facts of S v S divorce case were not particularly unusual. The couple had been married for 27 years with one child aged 19 and had joint assets worth between £1.5 and £2 million. The couple separated in 2012, had a decree nisi (date of the end of the marriage stated by the court) pronounced in early 2013 and agreed to have their financial matters arbitrated in June 2013; with a final award being made by the arbitrator on 7 November 2013.

Subsequently the couple’s representatives submitted to the court on their behalf a Consent Order (document finalising the award) which came before Sir James Mumby for approval.

WHAT DID SIR JAMES MUMBY SAY?

In his opening remarks the Judge said “there is no doubt the court should approve this Consent Order”. The Judge also wanted to use this opportunity “to give guidance to all the family courts about the proper approach the courts should adopt to such applications.”

In summing up his views he acknowledged that there had been increasing recognition where couples or families had reached agreements between themselves, plus referred to Lord Justice Thorpe’s description of such agreements being of magnetic importance in many cases. Judge Mumby also recognised the rising importance of other means of dispute resolution from mediation to the collaborative family law process and was supportive of adopting further procedures to speed up the approval of these types of agreements. He added that the court should give emphasis to the autonomy the couples had in reaching their own agreement.

30 The Clapham Omnibus

Fiona Read is a Partner and Head of the Family Team at the Putney Office of Russell-Cooke. She has extensive experience in all aspects of family law. Her particular specialisms are high value financial settlements including pre nuptial/partnership agreements, property disputes and cases with an international element.

Looking specifically at the way in which the arbitration scheme has been set up and designed, Judge Mumby also felt compelled to say: “An arbitrational award is surely of its nature even stronger than a simple agreement between the parties.” Therefore where a Consent Order is founded on an arbitration award under the IFLA Scheme (the Institute of Family Law Arbitrators), the Judge should approve it and only in rare cases would it be appropriate not to. The reason for this is that whilst he recognised that a Judge is not a rubber stamp, the combination of (a) the fact that the couples agreed to be bound by an arbitration award, (b) the fact that there has been an award which the Judge will of course be able to study and (c) the fact that the couples are putting the matter before the court by consent, makes them more likely to be approved.

Additionally, if a person wishes to resist the arbitration award (for a reason not based on the limited grounds of challenge of appeal permitted under the Arbitration Act of 1996), then a robust approach was recommended to quickly bring this matter to the court’s attention. He added: “Where the attempt to resile is plainly lacking in merit the court may take the view that the appropriate remedy is to proceed without more ado summarily to make an order reflecting the award and, if needs be, providing for its enforcement.”

In his final comments he recognised that arbitrators were deciding disputes in accordance with the law and that the objective must be to achieve a fair outcome between the couple. This included no discrimination between dealing fairly with the husband and wife.

WHAT DOES THIS MEAN FOR FAMILY ARBITRATION?

This is the strongest support the court has given to date for family arbitration. This now means that arbitration is on the mainstream map of options to be considered when a couple separate.

There are many advantages to using arbitration which became apparent in this divorce case. For example, the case was dealt with within a very short space of time compared to the length of time it would have taken to go through the court process, the couples’ privacy was maintained, plus they had the full support of the court at the final stage.

So, it is anticipated that arbitration will be used in many financial disputes in future as it can provide a swift, private and cost-effective solution.

If you require any further information about arbitration, please contact Fiona Read (Partner and Arbitrator). Visit http://www.bailii.org/ew/cases/EWHC/Fam/2014/7.html to see the judgment.

Fiona Read Partner +44 (0)20 8394 6324 Fiona.Read@russell-cooke.co.uk www.russell-cooke.co.uk This material does not give a full statement of the law. It is intended for guidance only and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke LLP. © Russell-Cooke LLP. January 2014

IMPORTANT CHANGES TO TUPE REGULATIONS

Employment Law

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), which protect employees when the businesses for which they work transfers to a new employer are notoriously complex. The recent changes to this legislation make life a little easier for employers and will therefore be welcomed.

The changes to TUPE follow a long period of Government consultation which started in November 2011. The conclusion of the consultation was that TUPE could be amended to improve its effectiveness and to remove some of the unnecessary “gold plating” so that it is more closely aligned with the Acquired Rights Directive.

The snappily titled Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (“the Regulations”) brought the following changes into force on 31 January 2014.

The changes will only apply to transfers occurring on or after that date as summarised below:

EMPLOYERS LIABILITY INFORMATION

Before the transfer of a business takes place the transferor is obliged to give the transferee written details of the employees that will transfer to them, including their identity, their particulars of employment and details of any disciplinary or grievance processes which have taken place.

The time limit within which to provide this information will be increased from 14 days to 28 days prior to the transfer for any TUPE transfer that takes place on or after 1 May 2014. This will provide transferee employers with more time to assess the employment liabilities they will be taking on.

ETO REASONS EXTENDED

When a TUPE transfer occurs, if an employee is dismissed because of the transfer, or for a reason which is not an economic, technical or organisational reason entailing changes in the workforce (“ETO Reason”), the dismissal will be automatically unfair.

Case law previously held that only changes in the number or employees or the functions performed by them could constitute an ETO reason. However, the Regulations have now extended the definition of ETO Reason to include purely geographical changes. Therefore, if there are redundancies as a result of the change of location of the transferee’s business, these dismissals will no longer be automatically unfair.

COLLECTIVE AGREEMENTS

When a TUPE transfer occurs the employees’ contractual terms automatically transfer to the transferee, as

though the contract was originally entered into between the employee and the transferee. Previously there was inconsistent authority on how this automatic transfer principle applied to terms which are collectively agreed, as negotiated from time to time.

The European Court of Justice Case of Alemo-Herron and ors v Parkwood Leisure Ltd decided that a static approach should be taken in relation to collectively agreed terms so that any collective agreement agreed after the date of the transfer will not bind the transferee if they were not a participant in the collective bargaining of that provision.

The Regulations now amend TUPE for any transfers taking place on or after 31 January 2014 by confirming that a static approach should be taken to collectively agreed terms.

For transfers which take place on or after 31 January 2014 the Regulations also allow for the variation of terms which are incorporated from a collective agreement provided that at least a year has passed after the transfer, and that, overall, the contract is no less favourable to the employee.

COLLECTIVE REDUNDANCY CONSULTATION

It is often the case that redundancies will follow shortly after a TUPE transfer. Currently, if it is proposed that 20 or more people are to be dismissed by reason of redundancy the transferee will be obliged to collectively consult in respect of the redundancies but cannot start the consultation until after the transfer takes place, which may delay the process.

Under the Regulations, the Trade Union and Labour Relations (Consolidation) Act 1992 will be amended to allow a transferee to start consulting representatives of affected transferring employees about the proposed redundancies before the transfer takes place, therefore speeding up the process. This is provided that the transferee notifies the transferor in writing that they wish to carry out pre transfer consultation and the transferor agrees. There will, however, be no obligation to start consultation before the transfer and the transferee can wait until the employees have transferred to them.

DIRECT CONSULTATION FOR MICRO BUSINESSES

In good time before a transfer takes place, employers must inform employees who may be affected by the transfer about what is about to happen and consult with them.

However, currently employers cannot consult directly with the affected employees; instead they must consult with appropriate representatives of the affected employees.

Appropriate representatives can either be a recognised trade union or employee representatives elected by the affected employees.

The election of representatives can be unnecessarily time consuming for small businesses that only have a small number of employees to consult with. To ease this issue, the Regulations will allow micro business to consult directly with their affected employees if there are no existing appropriate representatives. A micro business is defined as one with 10 or fewer employees.

This regulation will apply to transfers which take place on or after 31 July 2014.

Although the changes to TUPE are not as far reaching as had originally been envisaged, these minor reforms should be beneficial to employers who are dealing with business sales or changing service providers.

Amanda Trewhella is a solicitor with Fisher Meredith LLP. She is an employment law specialist with experience of advising on all aspects of the employment relationship, from recruitment and the drafting of HR policies and employee handbooks through to advising on business reorganisations, disciplinary and grievance procedures and drafting and negotiating settlement agreements and severance packages.

She has advised on the bringing and defending of a variety of Employment Tribunal claims including unfair dismissal, breach of contract, flexible working, whistleblowing and discrimination claims.

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HART BROWN EXPLAINS EMPLOYMENT RIGHTS IN RELATION TO FLOODING Employment Law

As we have seen since over the last few months, flood conditions can cause widespread disruption to homes and businesses, roads and public transport. This level and scale of disruption will undoubtedly have an impact on employers and businesses throughout Surrey, the Thames Valley, Somerset and other areas of the country badly hit. Helena Woodward-Vukcevic, from law firm Hart Brown, outlines the obligations an employer has to its staff.

WORKPLACE CLOSURES

If a business has to close its place of work due to flooding or flood conditions, employees would generally be entitled to be paid. If an employer does make a deduction to their employee’s pay, they may be entitled to bring a claim for unauthorised deduction of wages and/or breach of contract to recover the sums owed. The exception to this is if the employment contract has a clause entitling an employer to lay off employees without pay or where they are employed under a zero hours contract.

There are complex rules which apply to such clauses and parties should take legal advice in relation to this.

TRANSPORT DISRUPTION/ROAD CLOSURES

Employees are expected to make every reasonable effort to attend work despite any severe transport disruption or road closures, but without compromising their health and safety.

Generally there is no legal right entitling an employee to be paid by their employer if they are unable to attend work because of Helena Woodward-Vukcevic, specialises in general commercial litigation and employment law at law firm Hart Brown, http://www.hartbrown.co.uk

32 The Clapham Omnibus

flooding and technically it can be treated as an unauthorised absence. However, some employers may have contractual, collective or custom and practice arrangements in place relating to pay in such situations. A flexible approach is likely to be the most effective way of dealing with flooding and any resulting disruption to travel. Employers should consider the possibility of allowing affected employees to work from home or from alternative premises where available.

Employers should check to see whether they already have a policy to cover adverse weather in place. Where an employee’s usual route to work or means of transport is severely disrupted by flooding, they should explore other ways of getting into work. An employee should not however feel pressurised to risk their safety.

HOMES FLOODED

Where an employee’s home has been flooded and they need to take time off to deal with the damage caused, they are not automatically entitled to be paid for this. It is at the employer’s discretion to continue to pay an employee as long as they make the time up at a later date. Alternatively, an employer may request that the employee takes the time off as paid annual leave.

An employer cannot force an employee to take the time off as holiday without their agreement unless the employment contract contains an express right entitling the employee to do so.

GETTING TO GRIPS WITH CYCLING RELATED PERSONAL INJURY CLAIMS

Junior Lawyers Division

In the short period from the 5th to 18th November 2013, an alarming total of six deaths took place in London arising from road traffic accidents involving cyclists. Whilst the individual circumstances of each accident vary, they all involved the collision of a larger vehicle (such as a bus, lorry or coach) with a cyclist following, it has been suggested, the apparent failure of the driver to spot the cyclist early enough to take action to try and prevent the accident.

THE DIFFICULTY IN IDENTIFYING CYCLISTS

Whilst numbers are increasing, there are of course fewer cyclists on the roads than other road users and they are generally more difficult to identify particularly by drivers of larger vehicles. It is for this reason that rule 59 of the Highway Code encourages cyclists to help themselves to be seen by wearing high visibility clothing. In addition, under the Road Vehicles Lighting Regulations 1999, all bicycles must have front and rear lighting when in use after sunset. The failure of a cyclist to comply with any of the above may not in and of itself absolve another party of their liability but, depending on the circumstances of the case, the other party may allege contributory negligence on the part of the cyclist.

THE CONDUCT OF ALL ROAD USERS INVOLVED IN THE ACCIDENT

Mala Parmar Associate, Personal Injury and Clinical Negligence Russell-Cooke LLP The circumstances of these tragic accidents have not only prompted a much needed review of the safety of cycling in the city but they have also served as a pertinent reminder to personal injury practitioners of the multi-faceted nature of the claims arising from road traffic accidents involving cyclists.

On the face of it, a claim arising from an accident involving a cyclist is no different to any other negligence claim and it is true that the fundamental principles of negligence must be satisfied: there will be a duty of care owed by one road user to another, this duty of care must have been breached by one party resulting in loss to the other which was reasonably foreseeable.

However, there are various factors that must be taken into account when applying the test for negligence to cases of this nature. Whilst by no means exhaustive, a summary of the common issues that arise in these cycling accident cases is set out below.

In most accidents involving cyclists (and in most road traffic accidents generally), it is a lack of and/or poor judgement by one or both parties that causes the accident. In accidents involving cyclists, particular attention will need to be paid to whether road users gave appropriate signals before performing manoeuvres, whether each party remained in their respective lanes and whether due care was taken before overtaking.

Accidents sometimes occur as a result of ‘filtering’ by the cyclist whereby they filter through slow moving traffic. Any failure by the cyclist to exercise due caution when filtering or by the driver to take heed (particularly when intending to turn right at a junction) can result in a collision and it is common in these instances for the courts to find both parties at fault sometimes to the extent that there is a 50/50 split in liability.

Arguably, a better cycling infrastructure could prevent such accidents and when asked to comment on cycling conditions in the city following the deaths in late 2013, London Mayor Boris Johnson was keen to remind cyclists that they had a “duty to obey the laws of the road and heed signals” and was critical of those cyclists who “make decisions on the road that are very risky – jumping red lights, moving across fast moving traffic in a way that is completely unexpected and without looking to see continued The Clapham Omnibus 33

Junior Lawyers Division

what traffic is doing” arguing that it is difficult for “traffic engineers to second-guess that”1. Harry Dronfield, Chair of the South London Junior Lawyers Division, is a keen cyclist and states “providing safe cycling infrastructure on London’s roads has to be a priority for Local Authorities, the London Assembly, and the Mayor’s Office. Giving cyclists space away from motorised traffic and pedestrians is surely the single most important step in reducing accidents involving cyclists”.

THE FAILURE TO WEAR A HELMET Unlike with seatbelts, there is no legal requirement for a cyclist to wear a helmet although it is recommended under rule 59 of the Highway Code. However, in the case of Smith v Finch (2009) EWHC 53, [2009] All ER (D) 158 (Jan), the court held that the failure of a cyclist to wear a helmet will result in a reduction of compensation on the grounds of contributory negligence in cases where wearing an appropriate helmet would have prevented or reduced the severity of the injuries suffered by the cyclist.

ROAD CONDITIONS Arguably, cyclists are more likely than other road users to be affected by poor road conditions. The presence of potholes, objects in the road, loose gravel and poor weather can sometimes play just as an important a role in the occurrence of an accident as the actions of the road users. Road users are expected to modify their behaviour in light of reasonably foreseeable road conditions but in certain circumstances, a separate claim may lie against the relevant local authority for their failure to maintain the roads.

The tragic deaths that took place last November have demonstrated how dangerous our roads can be, particularly in London where the constant flow of traffic rarely seems to ease.

Whilst politicians and road safety campaigners quite rightly propose different ways in which to make cycling in the city safer, the sad fact is that cycling accidents will continue to occur and the personal injury practitioner must ensure that the above factors are fully explored when investigating accidents of this nature.

JLD EVENTS UPDATE Members of the Law Society of London Southbank University host a team from South London Junior Lawyers in the hotly anticipated, acronym filled, LSBU vs SL JLD Moot-Off on 13 February. We are very grateful to Mr Justice Silber who has agreed to chair proceedings.

LSBU have the home turf advantage so the pressure is on SL JLD to take the eloquent and detailed legal analysis to LSBU. Let advocacy commence!

Digital marketing through the use of social media is becoming an increasingly useful tool to interact with existing and potential clients. In April SL JLD are hosting a talk by Emma-Jane Clark, MD at digital marketing agency Gertrude and Ivy who will be imparting some gems of wisdom about marketing yourself and your firm through social media. The event will be held at BPP Law School, Waterloo.

This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke LLP. Copyright: Russell-Cooke LLP January 2014.

We are planning to host a Summer BBQ in or around July and will send details of that event and the social media talk to our members by email.

As always, there is no fee to join the JLD, just email SLLSJuniorLawyers@gmail.com. You must be a solicitor under five years’ PQE working in South London or a student studying for an LLB or LLM, a GDL, or the LPC in South London

FOOTNOTE 1

Quote by Boris Johnson contained within an article on The Guardian website dated 14 November 2013; http://www.theguardian.com/uk-news/2013/nov/14/fifthlondon-bike-death-bus-superhighway?CMP=fb_gu 34 The Clapham Omnibus

to join.

Harry Dronfield - Chair